Wooten v. Superior Court

• Decision Date: 30 October 2001
• Docket Number: No. E028089.,E028089.
• Citation: 113 Cal.Rptr.2d 195,93 Cal.App.4th 422
• Court: California Court of Appeals Court of Appeals
• Parties: Brent Howard WOOTEN et al., Petitioners, v. The SUPERIOR COURT of San Bernardino County, Respondent; The People, Real Party in Interest.

113 Cal.Rptr.2d 195

93 Cal.App.4th 422

Brent Howard WOOTEN et al., Petitioners, v. The SUPERIOR COURT of San Bernardino County, Respondent;

The People, Real Party in Interest.

No. E028089.

Court of Appeal, Fourth District, Division 2.

October 30, 2001.

Review Denied January 29, 2002.

[113 Cal.Rptr.2d 196]

[93 Cal.App.4th 424]

Roger Jon Diamond, Santa Monica, for Petitioners.

No appearance, for Respondent.

Dennis L. Stout, District Attorney, Grover D. Merritt, Lead Deputy District Attorney, and Mary L. Andonov, Deputy District Attorney, for Real Party in Interest.

OPINION

WARD, J.

In the trial court, petitioners Brent Howard Wooten and Daniel Robert Mendoza (defendants) stand charged with pimping and pandering. According to the evidence at their preliminary hearing, they worked as managers at the Flesh Club. The Flesh Club appears to have been mainly a standard "strip joint." However, it also offered semi-private rooms in which, for $240, plus an optional gratuity, a customer could watch two naked women perform sexual acts on each other for approximately nine minutes.

Defendants seek review of the trial court's refusal to set aside the information. They contend there was insufficient evidence of "prostitution," and hence insufficient evidence of either pimping or pandering, because (1) the women sexually touched only each other and not the customer, and (2) the only customer shown by the evidence was an undercover police officer, who, defendants argue, lacked the necessary intent to obtain sexual arousal or gratification.

We agree with defendants as to the first point. We will hold that the definition of "prostitution" requires physical contact between the prostitute and the customer. Because there was no physical contact between the women and the customers, there can be no underlying crime of prostitution. Without prostitution, there is insufficient evidence of either pimping or pandering. Hence, defendants' motion to set aside the information should have been granted. Because we reverse the trial court's denial of defendants' motion on this ground, we need not address the merits of defendants' other contentions.

I. FACTUAL BACKGROUND

The following facts were shown at the preliminary hearing.

The main room of the Flesh Club consisted of a stage on which nude dancers performed. It was surrounded by chairs and couches; the couches were used for lap dances. A separate room, called the "V.I.P. Room," included five to ten booths. Each booth was about five feet square and furnished with two small couches and a lamp on a table. The entrance to each booth was partially covered by a sheer curtain. On May 4, 9, 16, 22, and 26, 2000, Officer Mark Aranda and Officer Jerry Valdivia visited the Flesh Club, posing as customers. Officer Valdivia was in a wheelchair, pretending to be disabled, to facilitate his operation of a hidden video camera.

During each visit, the officers went into one of the booths with two female dancers. For about nine minutes, the dancers performed sexual acts on each other.

On May 4, 2000, Officer Valdivia paid each of the dancers $100, plus a $10 tip. On May 9, 2000, he was told that the price had gone up to $120, of which the "house" would receive $45. Thus, on all other dates, he paid each dancer $120, sometimes adding a $5 to $10 tip.

On May 4, 2000, the dancers involved were "Angel" and "Cat." ¹ Defendant Mendoza was a manager employed by the Flesh Club. From time to time, he looked into the booth and wrote something on a clipboard.

On May 22, 2000, the dancers involved were "Veronica" and "Anaya," and Veronica and "Malibu." Defendant Wooten was another manager employed by the Flesh Club. From time to time, Wooten came around with a clipboard and checked on the dancers.

On May 26, 2000, the police executed a search warrant at the Flesh Club. Anaya and "Exotica" told police the charge for a V.I.P. Room show was $120 per dancer. Exotica said $75 of this went to the dancer and $45 went to the management at the end of the night. She said the managers kept track of how much the "house" should receive by walking around and taking notes on what each dancer was doing.

II. PROCEDURAL BACKGROUND

A felony complaint was filed charging Mendoza with four counts, all allegedly committed on May 4, 2000: pimping² and pandering³ with respect to Angel, and pimping and pandering with respect to Cat. The same complaint also charged Wooten with six counts, all allegedly committed on May 22, 2000: pimping and pandering with respect to Veronica, Anaya and Malibu. After a preliminary hearing, defendants were held to answer.

An information containing the same charges was filed. Defendants filed a motion to set aside the information.⁴ They argued that there was no underlying prostitution because "the customer d[id] not receive sex for his money." (Capitalization omitted.) They also argued there was no prostitution because the particular customers involved, the police officers, did not pay the dancers with the intent that they and/or the dancers be sexually aroused or gratified. The trial court denied the motion.

Thereafter, defendants filed a petition for writ of prohibition in this court.⁵ Originally, we denied the petition summarily. The Supreme Court, however, granted defendants' petition for review and transferred the case back to us with directions to issue an order to show cause. We hereby comply.

III. ANALYSIS

A. The Trial Court Erred in Denying Defendants' Motion to Set Aside the Information

Defendants contend that the trial court erred in denying defendants' motion to set aside the information because the conduct complained of fails to meet the definition of prostitution under section 647, subdivision (b). Hence, without prostitution, there can be no pimping or pandering. The People disagree and argue that the scope of the statute includes the sexual conduct that occurred at the Flesh Club.

I. Standard of Review

The trial court must grant a motion to set aside the information if "the defendant ha[s] been committed without reasonable or probable cause."⁶ The denial of such a motion is reviewable by way of a petition for writ of prohibition.⁷

There is no factual dispute in this case. The only issue to be resolved is whether the alleged conduct constitutes "prostitution" under section 647, subdivision (b), in order to determine whether defendants have been "committed without reasonable or probable cause" for the crimes of pimping and pandering. "The proper interpretation of statutory language is a question of law which this court reviews de novo, independent of the trial court's ruling or reasoning. [Citations.]"⁸

Accordingly, we apply the de novo standard in determining whether the sexual conduct alleged herein constitutes prostitution under section 647, subdivision (b). If the conduct constitutes prostitution, the trial court properly denied the motion. If, however, the conduct fails to constitute prostitution, as a matter of law, then the trial court should have granted the motion to set aside the information because, without the underlying offense of prostitution, there would be no reasonable or probable cause to commit defendants for the crimes of pimping and pandering.

2. Legal Background

a. Definitions of Pimping, Pandering, Prostitution and Lewd Act

Pimping is committed by "any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person...."⁹

Pandering, as relevant here, is committed by "any person who ...:

"(1) Procures another person for the purpose of prostitution, [¶]... [¶] "(4) By promises, threats, violence or by any device or scheme, causes, induces, persuades or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate."¹⁰

In People v. Freeman {Freeman), the Supreme Court stated that the definition of prostitution is derived from section 647, subdivision (b) because the pandering statute does not define prostitution.¹¹ Section 647, subdivision (b) states that "`prostitution' includes any lewd act between persons for money or other consideration." Hence, the definition of prostitution, and ultimately, the definition of pimping or pandering, depends on what sexual conduct is considered to be a "lewd act."

"Lewd conduct" has been defined by Pryor v. Municipal Court (Pryor),¹² and People v. Hill (Hill).¹³ In Freeman, the Supreme Court noted that in Pryor, it defined "lewd conduct" as "`touching of the genitals, buttocks, or female breast, for the purpose of sexual arousal, gratification, annoyance or offense....' [Citation.]" for purposes of section 647, subdivision (a).<sup>14</sup>,<sup>15</sup> The Supreme Court also noted that in Hill, a lower court had followed Pryor by defining "lewd act," for purposes of section 647, subdivision (b), so as to require that "`the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute.'"¹⁶

b. The Rule of Lenity

The People argue that the sexual conduct that occurred at the Flesh Club constitutes prostitution, as defined under section 647, subdivision (b), because the statute does not state that there must be touching between the customer and the prostitution. Section 647, subdivision (b) simply states that prostitution "includes any lewd act between persons for money or other consideration." Defendants, however, argue that the conduct does not satisfy the statutory definition of prostitution because courts have defined "lewd act," which was...